On June 26, the U.S. Supreme Court decided that no state could limit or prohibit same-sex marriages in an opinion that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons… to define and express their identity.” As gay and lesbian couples celebrate the legal affirmation of their identity, another group within the LGBTI universe, one present on many campuses, continues to work toward greater recognition of its own: the transgender community. These efforts have been rewarded in recent years by federal policy makers, as agencies for the first time have articulated their positions regarding the application of federal discrimination laws to transgender individuals.

Postsecondary institutions, in response, have been working hard to better incorporate transgender employees and students into campus life, including revising discrimination statements and updating policies and procedures to comply with emerging guidance. Many also have crafted statements welcoming transgender students to enroll, and observing the importance of a diverse student body to the academic experience. Nonetheless, as is always the case when developing new policies based on emerging law and guidance (a common occurrence in contemporary higher education), questions remain regarding the practical application of such guidance, and how it should be implemented when in conflict with guidance issued by other organizations.

In the first of two installments on this topic on our REGucation blog, we examine current federal policy concerning the application of discrimination laws to the transgender community, and under what circumstances discriminatory actions on the part of an institution might be permitted.

Emerging federal policy regarding transgender individuals on campus

Federal policy impacting the treatment of transgender individuals on campus first began to take shape in 2012. At that time, the EEOC held in Macy v. Department of Justicethat discrimination against an employee based on his or her transgender status constitutes “sex discrimination” and, as such, is prohibited under Title VII of the Civil Rights Act of 1964. In reaching its decision, the Commission expressly overturned its own prior decisions, in which it historically had held that claims of discrimination based on the transgender status of an individual were not actionable.

Two years later, in an April 2014 guidance letter, the U.S. Department of Education’s Office of Civil Rights, for the first time, officially stated its position that the prohibition on sex discrimination found in Title IX of the Education Amendments of 1972 protects individuals from discrimination based “on gender identity or failure to conform to the stereotypical notions of masculinity or femininity.” The Department affirmed this position in a subsequent December 2014 guidance letter, which specifically stating that students who are transgender or do not conform to gender stereotypes are protected from sex-based discrimination under Title IX. In addition, the Department observed in the letter that where a school separates students on the basis of sex (e.g., restrooms, dorms, athletic activities), the school “generally must treat transgender students consistent with their gender identity.”

Awareness of, and attention to, transgender issues reached a high-water mark in the first half of 2015. In popular culture, transgender individuals have featured prominently. January saw Amazon’s show “Transparent,” a comedy-drama about a transgender father, win two Golden Globes, one for best series and one for best actor. In June, the third season of the critically-acclaimed Netflix series “Orange is the New Black” was released, starring, among others, Laverne Cox, a transgender woman who appeared on the cover of Time Magazine in 2014, and who continues to speak out on transgender issues. And most recently, and perhaps most significantly, former Olympian Caitlyn Jenner appeared on the July cover of Vanity Fair, and only a few weeks later, accepted ESPN’s 2015 Arthur Ashe Courage Award.

On the policy front, the Department submitted in February a “Statement of Interest” in Tooley v. Van Buren Public Schools, a federal court case filed in Michigan in which a transgender boy argues that his public school violated Title IX and the Equal Protection Clause. In its Statement of Interest, the Department offers the most comprehensive discussion to date of its views regarding the application of Title IX to transgender individuals.

According to the plaintiff in Tooley, the school did not allow him to use the bathroom consistent with his gender identity, and “outed” him to both students and parents, referring to him as “Olivia,” and using feminine pronouns when referring to him in class. At the outset of its argument, the Department states:

Similar to the language of Title VII of the Civil Rights Act of 1964, 42 U.S.C. '' 2000e et seq., Title IX prohibits discrimination “on the basis of sex” in education. 20 U.S.C. § 1681(a)… “On the basis of sex” includes discrimination based on the fact that an individual is transgender (i.e., has a gender identity different from the person’s sex assigned at birth) or the perception that an individual has undergone, or is undergoing, a gender transition.

The Department then argues that the facts presented by the plaintiff establish a prima facie case of sex discrimination based on his gender identity, transgender status, and nonconformity to sex stereotypes, citing its earlier guidance that a school “generally must treat transgender students consistent with their gender identity.”

Considering when discriminatory action might be appropriate

In its Statement in the Tooley case, the Department clearly signals that, in its view, an institution’s obligations under Title IX are not impacted by the nature of the gender transition (i.e., male to female or female to male), nor by the degree to which the transition has been completed, or completed successfully. Similarly, there is no requirement that an individual demonstrate that any medical steps have been taken to facilitate a transition, or that the stated gender is sincerely held or otherwise inherent to the individual’s identity. The Department even discourages the notion that concerns of potential harassment or harm to a transgender individual might justify discriminatory treatment. The Department’s view is simply that the institution should, in all respects, treat the student or employee consistent with his or her gender identity, as articulated by the individual.

As noted above, the plaintiff in Tooley alleges that he was denied access to the boys’ restrooms. He was required, instead, to use a staff ladies’ room or a unisex restroom, despite requests to be treated consistent with his gender identity. The defendant, responding to this allegation, argues that its perceived discriminatory actions were, in fact, legitimate and nondiscriminatory. For example, the defendant claimed that the plaintiff was asked to use the staff ladies’ room “for the sole reason that the boys’ restroom only had urinals and stalls with no doors,” and “that if the other boys saw [Plaintiff] using the bathroom given her [sic] unique circumstances, it may result in bullying and other safety concerns.”

In its Statement of Interest, the Department suggests that for the defendant’s position to prevail, it would have to demonstrate, among other things, that the claimed safety interest actually motivated its actions; that its actions in fact advanced that interest; and that other nondiscriminatory solutions were not available. Illustrating just how easy it is to dismantle such a position, the Department observes:

[R]ather than denying Plaintiff access to the boys’ restroom based on a fear of potential harassment, Wyandotte could have responded promptly and effectively to any harassment that arose, as Title IX requires. If the absence of doors on the stalls is the basis for Wyandotte’s concern, it could put up doors to address this concern rather than require the Plaintiff to use a conspicuous restroom designated for female staff members. Whatever appropriate steps Wyandotte could take to address its concern about harassment, those steps should not penalize the student who was, or could be, harassed, such as by excluding the student from a restroom when reasonable alternatives exist.

The Department’s commentary not only reveals its view that discriminatory action by an institution would rarely (if ever) be justified, but also signals that even if justified, such action should never penalize the transgender individual.

Implications for implementation

When discussing the above policy and guidance with our clients, it is rare there is any confusion regarding the fundamentals of the Department’s position. We do find, however, that administrators often seek additional counsel regarding the incorporation of transgender individuals into facilities and events that typically are separated by gender (i.e., restrooms, dorms, travel accommodations), and in particular, the incorporation of transgender individuals who still present, in most respects, consistent with the norms for the gender they were assigned at birth. Should an institution, for example, still place a transgender woman in a women’s dorm, as it would any other woman, if she, in all manner of appearance, presents as a man? Should a transgender man still use a men’s locker room, if he, in virtually all respects, presents as a woman? What if there are genuine concerns for the safety of the transgender individual?

Certainly, we believe it is possible, in rare circumstances, that the Department would acknowledge that an institution’s discriminatory actions were permissible under the law. For example, we seriously doubt the Department would object to an institution assisting a transgender individual who was in real and immediate danger, even if that assistance required discriminatory action. If an individual’s personal safety truly is at risk, Title IX compliance is, at least for the moment, an afterthought. We would chalk this up to common sense. Another example involves faith-based institutions. The Department provides such organizations the opportunity to request an exemption from those elements of Title IX that conflict with the institution’s religious principles. A small number of faith-based institutions have obtained such exemptions, having concluded, and demonstrated to the Department, that certain discriminatory policies are necessary to preserve and honor the religious tenets observed on their campus.

But setting aside these rare and specific circumstances, the Department’s Statement of Intent makes clear its view that Title IX compels institutions first and foremost to treat transgender students and employees consistent with their gender identity, even where doing so might be present various challenges. In the Department’s view, such challenges can be eliminated through accommodation (e.g., installing doors in the restroom stalls), or dealt with in the normal course (e.g., if harassment arises), and should never penalize the transgender individual. In the Department’s view, Title IX requires that this fundamental principle guide the institution’s decisions and actions, and be reflected in any written policy or protocol concerning the treatment of transgender individuals on campus.

In the second installment of this two-part series, we’ll examine the application of the federal policies discussed above to college athletics.

Aaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation. You can find Aaron on Twitter (@HigherEdCounsel) and LinkedIn, and reach him at (314) 552-6405 or alacey@thompsoncoburn.com. Special thanks to summer associate Jesse Doggendorf, who contributed significantly to this post.

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